Theft

• Theft Act 1968, s.1 states:

  "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it"
• Actus Reus:

  Appropriation

  of Property

  Belonging to Another Person
• Mens Rea:

  Dishonesty

  Intention to Permanently Deprive the other person of it (ITPD)
• Actus Reus - Appropriation:

  • This does NOT just involve taking something - it is where you treat something as if it is your own.
  • Is defined in Section 3 Theft Act 1968
  • "Any assumption by a person of the rights of an owner"
  • So this is where you treat something as your own.
• Actus Reus - Appropriation:

  • Includes:
  • Taking something and keeping it
  • Selling it
  • Destroying or Damaging it
  • Modifying or Changing it
  • Lending it to someone else
• Actus Reus - Appropriation:

  • Pitman and Hehl 1977:
  • D knew V was out of town, so invited another person into V's house and sold that person all of V's furniture.
  • D was GUILTY of theft - it did not matter that he hadn't removed any of the property, as selling soemthing is the right of the owner, so it is appropriation.
  • There is also no need to touch or handle anything to appropriate it (R v McPherson)
• Legal rule - Appropriation can be a continuing act but the jury decides when it is complete

  • R v Atakpu and Abrahams (1993) - 's hired luxury cars in Brussels and Germany with intention to bring them to UK to sell. The appropriation happened outside of the UK's jurisdiction.
• Legal rule - Swapping labels in shops is appropriation.

  • R v Morris (1984) - D charged prices on an item in a supermarket to pay a lower price. He was GUILTY of theft as only an owner has the right to do this.
• Legal rule - If there is no appropriation there is no theft - even if there is intention to steal.

  • Eddy v Niman 1981 - D loaded a shopping trolley with items. Intending to steal them, but then D lost his nerve and abandoned the trolley without taking the items out of the shop. D NOT GUILTY. Was no appropriation so there could be no theft, even if D had the mens rea. He had not assumed rights of the owner as we are allowed to put items in a trolley in a shop.
• Legal rule - Someone who purchases stolen items without knowledge is not guilty.

  • s.3(2) Theft Act 1968 - they are called a bona fide purchaser (in good faith). They will not be guilty of theft - even if they become aware of fact the items were stolen at later date (R v Adams).
• Legal rule - if the owner consents to the appropriation this will not be theft - UNELSS this consent is obtained by deception.

  • R v Gomez 1992 - D persuaded his employer (store manager) tp accept cheques as payment, knowing those cheques were stole. Consent of the store manager was obtained by deception - D was GUILTY of theft.
• Legal rule - if the owner consents to the appropriation this will not be theft - UNELSS this consent is obtained by deception.

  • MPC v Lawrence 1972 - D was a taxi driver, V was Italian passenger who did not understand UK currency and held his wallet out to D for payment. D took 6 times too much. He was GUILTY of theft as although V did offer him his wallet, this was not true consent as D deceived V.
• Legal rule - there can be appropriation even if something is given as a gift - if there is deception.

  • R v Hinks 2001 - D cared for an elderly man of limited intelligence who she persuaded to give her gifts totaling £60000. D was GUILTY of the theft of these gifts as she had used deception to get V to give them to her.
• Actus Reus - Property:

  • "Things in action" and "other intangible property"
  • Things in Action:
  • are rights over property which can only be claimed by "action" and not by taking possession.
  • e.g. rights under contracts, insurance policies, debts.
  • includes cheques and overdrafts (confirmed in R v Kohn)
  • Darroux v X 2018
  • D claimed for £50000 of overtime which she did not actually work.
  • This money was a "thing in action" as she claimed it by filling in overtime forms (was NOT GUILTY as no appropriation).
• Actus Reus - Property:

  • Other Intangible Property:
  • "Intangible" = something which is not physical
  • Includes things like patenting an invention, or an export quota (Chan Nai-Keung)
• Actus Reus - Property:

  • There are also things we know are NOT included here:
  • Corpse (R v Sharpe) -> Wildflowers, flora and fauna (s.4(3) Theft Act) -> Unless for resale or reward.
  • Confidential Information (Oxford v Moss) -> Wild animals (s.4(4) Theft Act) -> Unless they are pets/possessions.
  • Electricity (Low v Blease, s.13 Theft Act) -> Body Parts (R v Kelly and Linsday) -> unless skill is being applied to them
• Actus Reus - Property:

  • R v Kelly and Lindsay 1998 - D was a sculptor who stole body parts to use to make casts for an art project - then burying them near his home. D was GUILTY. R v Sharpe says a corpse is not classes as a property which includes body parts. However, this is the exception - where skill is being applied to their use.
• Actus Reus - Property:

  • R v Welsh (1974) - However bodily fluids can be property. Here a drink driver poured his urine sample down the sink when the police officer wasn't looking - this was classed as destruction of property in a police investigation. This was confirmed in Yearworth v North Bristol NHS Trust 2009 where destroyed semen samples were confirmed as property.
• Actus Reus - Property:

  • Oxford v Moss (1979) - D stole an exam paper with the intention of returning it once he had used the information to cheat in the exam. HELD: the confidential information contained in the paper did not amount to intangible property for the purposes of the Theft Act 1968. NOT GUILTY.
• Actus Reus - Belonging to another:

  • It is only theft if you appropriate property that you do not own or have possession/ control over.
  • This is defined in Section 5 Theft Act 1968
  • "Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest."
• Actus Reus - Belonging to another:

  • Includes:
  • Another person owning something.
  • Another person having possession or control of something.
  • Wide interpretations of 'belonging to' - includes stealing your own property in some situations (R v Turner).
  • Obtaining another persons property by mistake and keeping it (s.5(4)(AG's Ref).
  • Being given another persons property for a specific reason and using it for soemthing else (under an obligation - s.5(3)(Davidge v Bunnett)
• Actus Reus - Belonging to another:

  • D ca be guilty of stealing their own property - if someone else has possession or control over it at the time it is taken.
  • R v Turner (No.2) 1971: D took his car to a garage to be repaired. When he returned to collect it he saw it parked outside and used his spare key to drive it away without paying. HELD: GUILTY of theft of his own property as at the time of taking the car the garage had possession and control which meant it belonged to them.
• Actus Reus - Belonging to another:

  • D is guilty if they are given property for a specific purpose and use it for something else.
  • Davidge v Bunnett 1984: D was given some money to pay the gas bill by her flat mates. She decided to spend the money on Christmas presents instead. HELD: As the D was obliged to deal with the property in a particular way it was seen as still belonging to another if that obligation was not fulfilled and therefore D had appropriated the property. GUILTY.
• Actus Reus - Belonging to another:

  • D is also guilty even if they obtain the property by mistake - if they decide to keep it after realising the mistake.
  • AG's Ref (No 1 of 1983): D was a policewoman who was given extra money in her wages (£74) because of an accounting error and did not give the money back, but also didn't spend it. HELD: It was possible for a theft conviction to arise where the defendant had not withdrawn the money as there was a legal obligation to return the money received by mistake.
• Actus Reus - Belonging to another:

  • R v Rostron 2003 - D's GUILTY of stealing gold balls even though they had been abandoned by the golf club behind a stretch of water. They still remained property of the golf club as they retain control over them.
• Actus Reus - Belonging to another:

  • R v Dyke and Munro 2002 - D's collected charity money then kept it. They were charged with stealing from the public - but were NOT GUILTY as they had actually stolen from the charity, as ownership had passed to the charity.
• Actus Reus - Belonging to another:

  • Williams v Phillips 1957 - Rubbish left out for collection remained the property of the homeowner until it was collected by refuse collectors, at which point it transferred ownership to the District Council. Therefore anyone helping themselves to the rubbish was GUILTY of theft.
• Actus Reus - Belonging to another:

  • Ricketts v Basildon Magistrates 2011 - D stole from charity bags left outside two charity shops. One lot of bags was in a donations bin outside an Oxfam shop, and the second lot we placed outside the front of a British Heart Foundation shop. D was GUILTY of theft as he has appropriated property belonging to others. The items in the Oxfam donation bin belonged to Oxfam. The bags outside the BHF has not been passed into the possession of BHF as they were in the doorway but the ownership stayed with the original donor until BHF took possession.
• Actus Reus - Belonging to another:

  • Includes if someone else has a "proprietary interest" over the property.
  • A proprietary interest is a right of ownership or possession of property.
  • s.5(2) states that property held in trust belongs to anyone who has the right to enforce the trust, and an intention to defeat the trust is an attempt to deprive the person of that property.
• Actus Reus - Belonging to another:

  • R v Marhsall 1998
  • D resold partly used underground tickets.
  • D GUILTY of theft as London Underground retained a proprietary interest in the tickets.
  • R v Webster 2006
  • D was an army sergeant sent two medals by accident, so he sold one on eBay.
  • He was GUILTY of theft against the Ministry of Defence, as they retained a proprietary interest in the other medal.
• Mens Rea - Dishonesty:

  • Dishonesty is the only element not defined in the Theft Act 1968 - so we turn to case law:
  • In deciding if someone is dishonest, historically the Ghosh test was used (R v Ghosh 1984).
• Mens Rea - Dishonesty:

  • HOWEVER, a recent case of Ivey v Genting Casino (2017) has offered this, removing the second part of the test.
  • Therefore, jury have to ask:
  • What was the state of D's knowledge or belief as to the facts?
  • Were their actions dishonest by the standards of ordinary, decent people?
• Mens Rea - Dishonesty:

  • Dishonesty is the only element not defined in the Theft Act 1968 - turn to case law:
  • word 'dishonesty' not defined in Theft Act.
  • Section 2 does state what will NOT be classed as dishonest:
  • D has the right to deprive the owner of the property (R v Robinson 1977)
  • D would have consent of the owner in the circumstances (R v Holden 1991)
  • Person who property belongs to cannot be discovered by taking reasonable steps (R v Small 1988).
• Mens Rea - Dishonesty:

  • D can rely on these (section 2) even if it is unreasonable for them to believe one of these three things to be true.
  • This is demonstrated in R v Holden (1991) and R v Small (1987).
• Mens Rea - Dishonesty:

  • Dishonesty is left to the jury to decide.
  • Section 2 (2) states that if D is willing to pay for an item they could still be seen as dishonest - however this is a matter for the jury to decide: R v Feely (1973)
• Mens Rea - Dishonesty:

  • R v Feely (1973) - D was manager in a betting shop who took £30 from the till, saying he would pay it back. The judge told the jury to ignore the fact he was willing to repay when making their decision. Held: Conviction quashed on appeal as jury should have been able to decide based on all the facts.
• Mens Rea - Intention the Permanently Deprive (ITPD):

  • This means D intends for the owner to never get the property back, either at all, or in its original form.
  • Under s.6 (1) Theft Act 1968:
  • Includes "treating the thing as his own to dispose of regardless of the other's rights".
• Mens Rea - Intention the Permanently Deprive (ITPD):

  • Also includes borrowing and returning it in a less valuable way.
  • "Borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal."
  • E.g. borrowing a gift card, spending the balance, then returning the gift card to the original owner.
• Mens Rea - Intention the Permanently Deprive (ITPD):

  • R v Lavender (1994) - D removed doors from council property due for demotion and fitted them in his girlfriend's flat (which was also council owned). He was GUILTY - this was ITPD as he treated the doors as is own to dispose of (even though they still went into another council owned property).
• Mens Rea - Intention the Permanently Deprive (ITPD):

  • R v Lloyd 1985 - D worked at a cinema and borrowed films to lend to friends and make pirate copies before returning them to the cinema, undamaged, a few hours later. He was NOT GUILTY of theft as he had no ITPD - borrowing and returning property is only included if it is returned in such as state that it has lost all its value.